About this site

This resource is hosted by the Nelson Mandela Foundation, but was compiled and authored by Padraig O’Malley. It is the product of almost two decades of research and includes analyses, chronologies, historical documents, and interviews from the apartheid and post-apartheid eras.

09 Sep 1998: Kriegler, Johann

Click here for more information on the Interviewee

JK. We've got one hour, OK.

POM. What I want to talk about initially is this dispute that has been going on about what IDs will be used in the elections in 1999 and I will just read three quotes - it will give you the context of the questions that I will ask. The first is from the HSRC report which suggested: -

. "That the government will not be able to meet its goal of providing ID documents in time for next year's election. The controversy was sparked by the result of an HSRC survey which estimated that as many as 4.7 million potential voters were not in possession of a bar-coded ID document which was the initial requirement for voting in next year's election. The report also questioned the Ministry's ability to supply the necessary ID documents in time for the elections and suggested that other forms of ID be considered. Home Affairs Director General Mr Mokoena dismissed the HSRC figures as inaccurate. He also said the Ministry stood by its initial estimate of 2.5 million potential voters without bar-coded IDs and reaffirmed Home Affairs ability to deliver IDs in time for next year's election. He also dismissed as inaccurate another finding in the report which estimated that 2.2 million people were without any form of identity document pointing out that the department did not have any real backlog of people applying for IDs between the ages of 17 and 21. Home Affairs capacity to deliver was reaffirmed by the Director General who explained that, 'As far as the infrastructure is concerned our production capacity can be increased from the current 18,000 a day to 25,000'."

. Then you had yesterday the Electoral Bill passing through the Parliamentary Portfolio Committee: -

. "After assurances from the Department of Home Affairs that it had the administrative ability to ensure all potential voters would have bar-coded IDs in time for next year's general election Home Affairs Director Albert Mokoena told the Committee his department was committed to providing bar-coded IDs in time for the election. It would recommend (that is Home Affairs would recommend) to the Electoral Commission that it accepts for registration purposes (it doesn't say for voting, it says for registration purposes) temporary ID documents with an ID number. Such people would be required to apply for the bar-coded document and would immediately on application be issued with this temporary document bearing a photograph and ID number. Home Affairs officials would help the voters with their applications at the registration points. Applications received before the registration cut off date would be processed and despatched before election day. People who lost their bar-coded IDs before polling day would on application be issued with a temporary ID certificate. He urged the media to encourage the public to apply for the correct IDs."

. And then we have yourself talking yesterday to the Social Services Committee of the National Council of Provinces: -

. "Independent Electoral Commissioner, Chairperson and Constitutional Court Judge, Johann Kriegler, has warned that the Electoral Bill would face a Constitutional Court challenge if it excludes the millions of people who could be without the new bar-coded identity cards for voting in next year's election. Judge Kriegler also tabled an amendment from the IEC which if accepted would allow holders of the old blue non-bar-coded ID documents temporary ID cards and those with books issued by the former TBVC homelands to register and vote in the elections. The IEC amendments were in direct contrast to the decision taken by the ANC National Executive Committee which announced recently that only people with bar-coded IDs should be allowed to register and vote. Judge Kriegler warned that such a move would mean that at least 2.5 million people without bar-coded IDs would be unable to vote. 'What happens to people who have applied for and don't have their IDs on voting day? I took an oath of office that I would allow people that have the right to vote to do so. What happens when millions of people can't vote?' the Judge asked. He opposed an amendment from the Department of Home Affairs which would allow people with non-bar-coded IDs to register but not to vote in the 1999 elections. An ANC delegate from the Northern Cape expressed concern that the IEC's amendment would allow people who fraudulently acquired IDs in the former TBVC states to vote in the election. Judge Kriegler accepted that old IDs would affect the credibility of the voters' roll but said the risk was better than not allowing millions to vote. The Judge also cautioned that any delay in the approval of the Bill would delay voter education, training of staff and the issuing of election literature. 'We have to go to registration no later than the beginning of November. We are desperate that it's not later than that. We can't start with voter education and training of staff until we get this agreed.' Judge Kriegler was surprised that the Department of Home Affairs had gone ahead and printed a temporary registration certificate which has not been approved in parliament without consulting the IEC. 'I am astounded', he said."

. First question is why do you think the ANC is so adamant that only bar-coded IDs be used?

JK. I don't know, I have not been privileged to be told, I have not had the benefit of a debate.

POM. Has there been any discussion between you and not just the ANC but other political parties with regard to their views on registration?

JK. There has been extensive debate between us, between the IEC and all political parties ever since the IEC was formed. The decision of the National Executive Committee of the ANC was taken without reference to the IEC and without discussion on the point with the IEC. I don't know why it was taken.

POM. Now in your previous discussions with members of the ANC, what impression did you gain from them as to their views on the acceptability of different forms of registration?

JK. The decision of the NEC came as a surprise.

POM. I suppose what puzzles me is they, as the organ of a liberation movement that spent at least 40 years in intensive struggle to get people the right to vote, which was the core of the struggle, are now prepared to disenfranchise people on the probability of fraud without any idea of the probability of what that level of fraud would be.

JK. I really can't debate the political rights, wrongs, pros, cons. I don't know why they took the decision. I think as an administrator, I think it's taking a risk. It's taking a two-fold risk. The first risk is that our data proves more or less correct and that Home Affairs cannot produce registration and/or voting documents at the requisite rate thus disenfranchising substantial numbers of people that is not only a failure on our part to perform our constitutional mandate but it has the very grave risk for the safety and security of those who do go to vote if there are large numbers of irate, frustrated potential voters who can't vote. That's the purely administrative side of it. I think that there is a serious legal consideration that one must weigh and that is that in terms of SA law, ID documents of a kind without bar codes are recognised as valid by the SA Identification Act, that is older ID documents. If there should be a legal challenge -

POM. That Act is still in force?

JK. It was put into operation on 1st August this year and it expressly recognises as valid for the time being old documents. If there were to be a challenge to the constitutionality of a provision which excluded people from the ballot box because although they hold a valid SA identity document, it isn't of a particular kind, it's not the kind of challenge that one can say can be dismissed out of hand. It seems to have some substance to it. Even if it were to fail ultimately in the interim while the legal process is on the go, while the case is being argued in court in the first instance and possibly on appeal, what happens to the electoral process, what happens to the registration process? Those are the two reasons essentially why we have our serious misgivings.

. I may say, to fill in the picture completely, it is common cause among everybody that the ideal is to have a qualifying document which is fraud-proof in order to get yourself on the voters' roll. It's our first national voters' roll, we would all like to see it as good as human ingenuity can make it. The best way to do that is to use only a bar-coded identification document because that cannot be duplicated. As far as we're concerned, as far as our knowledge goes, it cannot be forged so you will only get on once on your bar-coded ID, the bar code having built into it a fingerprint and photograph encoded. That's common cause. We started off on the basis that we said as the IEC we will ask that everybody register only with a bar-coded ID because we went to Home Affairs way back in 1996 and said, how many people haven't got bar-coded IDs, or how far have you got with the issue of bar-coded IDs? And we were told 96% and going strong.

POM. 96% have?

JK. Have, and going strong.

POM. This was in 1996. There were about 4% that didn't have; but they were doing nicely. So we did all of our initial planning on the basis of bar-coded IDs. Meanwhile, somewhere round about February/March of this year we started getting reports from our interviews in the country districts, in the provinces, our interviews with political parties, that maybe the 4% was a little optimistic. So we went to Home Affairs in March and we said, "What's the latest figure?" And they said, "Don't ask, we don't know." We then again heard a figure of 10%. Now 10% and 4% is quite a little difference.

POM. 10% had not?

JK. Had not. So we said to Home Affairs, let's jointly commission the HSRC, which is a prominent parastatal NGO, to do a survey for us, or to supervise a survey for us. It's their neck of the woods and they really know what they're doing. So Home Affairs said, well we won't co-sponsor but we will join with you in instructing them. So we instructed HSRC to do us a survey. We think they did a very, very responsible, reliable survey. They interviewed 23,577 people at 891 statistically selected enumerator areas around the country specifically loaded to correspond with various profiles of society, and they came up with a figure eventually of 10%, 10.6% no ID at all and 10.4% or thereabouts of people who had the wrong kind of ID, no bar-coded ID. Now we had 20% of the electorate. That report, the first part of the report, emerged on 31st July and we immediately said, that being the case we cannot, as the electoral agency, insist on bar-coded IDs. We must take a different tack. We called in the political parties, we went directly to the Portfolio Committee of the House of Assembly. We went and put it all on the table. We gave them the HSRC report and when the second leg came in we gave them that. We said, "Here we stand."

. Now we say, please if we can't have only bar-coded IDs, we can't. Let's have all IDs but let's mark fingers again at the voting time to preclude people voting with two IDs because about .8% of the existing IDs haven't got an ID number. Have not. Those are the old TBVCs from the Transkei, Bophuthatswana, Venda and Ciskei (you know that's what TBVC stands for?), and they can be duplicated and they were duplicated and they applied and they often got two and three and four books according to urban legend on which they drew separate pensions. And we said we will have to deal with those as an ad hoc problem. There are less than a quarter of a million around the country and we can cope with that. If you postulate that each and every one of them is fraudulent it's still not going to make an enormous difference, it's less than .1% of the electorate. Anyway, the Portfolio Committee seemed to agree with us on a multi-party basis.

POM. So when you walked out of the Select Committee you came away with the impression that the Select Committee was in agreement with you?

JK. That's a little of an overstatement. I knew that the members present if not subject to political discipline, personally would agree but that the ANC had not yet finally adopted a position and then the NEC took a decision and lowered the boom and said, this is the party line and this is the way you must proceed in the Select Committee and in parliament. And there we are. That's where we stand at the moment. I have sent an urgent message to the leader of the ANC, the President of the ANC, warning of the grave risk. I think it's a political risk. I think, my gut and my common sense tell me that somewhere round about February next year we will have to make an adjustment.

POM. I suppose what gets -

JK. If it's like that, it's like that. I don't know why they took the decision.

POM. What strikes me particularly in view of the fact that you say that the non-numbered IDs from the old TBVC states account for .8% of all registrations and even if they were duplicated, let's say every one was fraudulent and every one was duplicated, you're still talking about under 2% in terms of 'a fraudulent vote'.

JK. Well only 1%, because the 1% would be kosher.

POM. OK, that's right, yes. I may be naïve but it seems to me that in emerging democracies where people are just getting used to the idea of democracy that a degree of fraudulent practice should automatically be built into the electoral process, it's just human nature learning a different way of doing things but if you can get around it you get around it and that what free and fair means is not free and fair in any absolute sense but whether they are free and fair in the sense of being representative of the views of the community.

JK. And that the organisation, the administration is not biased. We must be straight. If people out there succeed in perverting the process to a minimal degree, well so be it, that's part of politics. I'm on record as saying that you can't expect virginity in a brothel.

POM. So free and fair, if you were at this point in your career and having dealt with the elections the last time and facing elections this time and looking at elections that have since been conducted around the world in all kinds of situations and looked at what's been judged free and what's been judged fair, it seems sometimes to me that it depends more upon political expedience than on the results of an objective count. What would you call, in your view, what would you call free and fair?

JK. I would go along with 88% of what you say, except I wouldn't use the word 'expedient'. Expedient I think is a pejorative word with too much baggage loaded into it already.

POM. OK, we'll delete expedient.

JK. But political will, political will is what makes an election work. If the overwhelming majority or the bulk of the electorate is satisfied with the result as being a fair reflection of what the people said they wanted their governance to be for the ensuing period, that's a free and fair election. That means that they've had an opportunity to make up their minds, they've had an opportunity to listen to the alternatives and they've had an opportunity to substantially express their views pursuant to that opportunity. So it means that you've had a reasonable campaign, you've had a reasonable electoral administration. It's not perfection. I think the Mexican example is still the best where they had in their last general elections I think as close to electoral administration perfection that you could find. An enormously elaborate and sophisticated and expensive identification and registration system, very small voting districts, a high degree of voter convenience, a high degree of professional skill in administration and in the execution of the election. The people didn't believe the governing party any longer, they didn't believe that they could allow an electoral administration to run a clean election and the election had no credibility because of the political climate, not because of the administrative climate. Our election on the other hand in 1994 was technically flawed in many respects but the people were satisfied that Kriegler and his crowd weren't crooking and that such crooking as there was was within reasonable limits and that the result was more or less what everybody wanted it to be, and then it works. That's free and fair I think. Lesotho, you've been keeping your finger on the pulse there? I think their basic problem is that they've got the wrong electoral system. They've got a winner takes all system which means that everybody who isn't the winner stands on the sidelines sulking. The LCD won 79 out of the 80 seats and the other guys say, "Hey, I want a share of the goodies, I want a say." Perhaps the election wasn't all that clean, I don't know, I wasn't there and there's an enquiry into it at the moment. But the basic problem is that the political will of the people is not reflected in the result. You need a lot of sophistication to be able to accept one of the inevitable consequences of a first past the post election and that is that you can have an overwhelming majority with a minority of the votes.

POM. In the UK at the moment technically you could win 34% of the vote in terms of first past the post in a three party system and win every seat in the House of Commons.

JK. Yes. What did Labour get? 44%? And an overwhelming majority, they wiped the floor with the Tories.

POM. And two elections before that, in the 1992 election which Margaret Thatcher won, she got well under 40%, it was in the 30%s, and she ended up with an overwhelming -

JK. That's right. You need a sophisticated electorate to be able to accept that and to live with it, which they haven't got in Lesotho.

POM. As an aside, and this is purely an aside because I was making some notes on this the other night for myself, the Congo. Everyone is calling for a ceasefire and that after a ceasefire there should be a negotiated settlement and after the negotiated settlement there should be 'free and fair elections' and democratic governance introduced. Does it make sense in a country so divided, where the word democracy itself has barely been used for the last 35 or 40 years, where you have a population that's largely illiterate, where concepts of different forms of governance and constitutional models are just totally alien, to suddenly tell them that we are going to have free and fair elections and a thing called democracy is going to be introduced, or do you need a long transitional process at the end of which you have democracy rather than making the end of the process the starting step? You go through the various steps to lead people in the direction of being able to reach democracy.

JK. You're not giving me two alternatives, they're the same thing. You've got to start in your tribally, riven, ignorant, bloody, illiterate society. You've got to start. You've got to start some time or another if you accept that human beings are unique among all animals, that they have a will and they have an intellect and they have a right to say how they are going to be dealt with in life. If you believe that you've got to start somewhere. You've got to say however imperfect, however doubtful one may be about its immediate legitimacy, it's the first step and you will get there eventually or you give up. The alternative is to say well then we must go from one dictatorship and bloody exploitative oligarchy to the next and I don't think that's an alternative. Democracy is a very, very poor form of government, it's a very expensive form of government but it's the best that's available, I think anyway.

POM. I was trying to think of that. Who said that initially? Was it Churchill?

JK. I'm sure Churchill said something along those lines.

POM. It came up the other day just as one of those trivia questions and everybody knew the quote but nobody knew who it was.

JK. Probably Churchill. I actually had debates with the people before Mobuto fell, we had representatives from a number of the opposition groupings in Congo here at the time, it was then still Zaire, and we also had discussions with people from Haiti. So it's not a fresh question, we've grappled with this one before and it's very, very difficult. Yes. And it's very, very unsatisfactory, yes, but it's a damn sight better than any alternative and you've got to start. So that's the only answer I can give you. Here, I think, our elections in 1994 were, considering the context, a triumph on the way to democracy because it was peaceful, because everybody accepted it, because it produced a result that nobody could seriously challenge and everybody was prepared to live with. And notwithstanding the fact that the rearrangement of socio-political and economic power after 300 years of a different regime is very awkward and very painful, we're actually functioning. I think it's a triumph of the human spirit. We had every reason to fall apart and we didn't. I think the next elections are going to be another little bit of cement counteracting the centrifugal forces that are there certainly. And the next elections if they succeed will be even better, an even stronger cohesive force, and 20/30 years down the line, a generation, a generation and a half -

POM. The culture of democracy has been inculcated.

JK. And the gap between the haves and the have nots is narrower and the significance of tribal differences is less. We will get there. If I don't believe this I'd better commit suicide and I'm not keen on that.

POM. I'm going to just put forward, I know this isn't actually on the topic but they are just ideas I've been playing around with in my head, this rather probably heretical thought that in an odd sense apartheid may have facilitated the holding of elections in this sense that the whites believed that they had a democracy, there was a parliament, there were elections, there were debates in parliament, there were portfolio committees, there was the semblance of opposition, there was an independent judiciary, there were other institutions of society not all of them directly under the control of the government, so that the liberation movement was familiar with - just watching this very partial form of democracy at work at least there were ideas out there about what democracy was about and how democracy should work. Maybe apartheid being a very good example of how it obviously shouldn't work but it was something to look at which is different, say, from the situation in the Congo where there's nothing to look at. You look around the country and all you've got to see is dictatorship, dictatorship, oligarchies, corruption, tribal fiefdoms.

JK. I don't think what you're putting forward is all that much of a heresy and I think that you would find people within the ANC who would agree with you. It was a perverted neo-colonial parliamentary democracy but it was a parliamentary democracy certainly in its conception. No, it was exemplary to a lot of people, no doubt about it. The point you make about the independent judiciary, I had a fascinating talk some years ago with the chairperson of the Duma's Human Rights Committee in Moscow, an elderly man who I subsequently found out, he told me, was one of the last generation of lawyers still to be trained by pre-revolutionary professors in the thirties. I had written an introductory speech to him about how we share a common problem, that we come from a rigid but functioning system that is now being dismantled and how do we prevent things falling apart while democratising. And he stopped me and he said no, no, there is no comparison at all. He said in SA you had a functioning judiciary. "I was trained", says he, "that the judge's function is to examine the facts, find out what the facts are, find out what the law is that is applicable to those facts and apply it. In the Soviet system that did not apply, the judicial function was abolished and the judicial officer was merely an executive officer of government applying Soviet policy. You in SA have got corrupt judges but they are judges." It's the same point you're making. We've got the admittedly second-hand and poor and jaded and dishonest, but they were functioning. And of course the whole separate development idea did have elections of a kind of the so-called homelands whether they were the independents or the self-governing.

POM. So the concept of elections wasn't an alien concept.

JK. No it wasn't.

POM. If you go into a tribal society, my point would be that if you go into a society that's mostly tribal if you say 'elections' they don't know what you're talking about.

JK. They haven't a clue what you're talking about.

POM. If you say 'democracy' they don't know.

JK. It's outside their frame of reference, yes.

POM. That's what I was getting at.

JK. I would go along with that. It also had great disadvantages because it led whites to believe that what they had was democracy and they thought what they had was an efficient government administration which was fine because all of the efforts were concentrated on 10% of the populace. Once the goodies had to be spread and the admin had to be spread across the whole population, they said these bloody blacks can't govern, not realising that the government was infinitely better in the black areas than it had ever been before, spreading the jam thinly.

POM. I've talked about that have you made an independent assessment of Home Affairs capacity, which you have.

JK. HSRC figures are not public, they're very much worse than Home Affairs says they are. I don't think they can produce anything like the number that they have to produce. You see they've got a problem, once again the terrible legacy of apartheid. We had Home Affairs in each one of the homelands, they haven't integrated those offices properly yet. Mr Mokoena knows that he's got a production capacity at his printing factory in Pretoria for producing ID documents. But there's a great deal more to getting ID applications in, and processed, and ID documents back to the people out there. It's not easy to conceive of it. You're talking of people who live 50 miles from the registration point, who walk there to come and apply. They then are told the office is closed. They go back, they come back three days or a week later. Eventually their application is accepted. Their birth certificates are out of order and they are told to go and get other proof of their SA citizenship. They come back a week later and, all right now they've got something that is acceptable to the pretty inefficient local office in Umtata which sends the stuff up to Pretoria where the computer spits it out and says these fingerprints are no good, retake the fingerprints. It's not a question of picking up the phone and saying Mrs. Kholisi will you please come in and have your fingerprints retaken. Mrs Kholisi lives in a village 50 miles up the mountainside. When she comes in three months and she says "Where's my book", they say, "Sorry, we must re-do your fingerprints." Back they go. Now let's assume eventually her book is produced, what do they do with it? They don't pick up the phone and say, Mrs Kholisi good news, your book is here. That book gets shoved in a corner at the office in Umtata until one day Mrs Kholisi comes along. They had stacks of ID books in the offices in Umtata.

POM. Then they have to find it.

JK. The never have to find it, they don't know how to find the people. Once the people have arrived, if you've got an office-full of stacks of ID books where do you start? They didn't have a filing system, they didn't have an organisation to produce 25,000 Ids, getting them into the hands of the prospective voters, per day in this country. It would be a miracle, not printing the bloody stuff at the Government Printer and putting it through a binding process. That's easy, that's not the bottleneck. The bottleneck is at the beginning and at the end again. I'm talking far too much and I'm not answering your questions.

POM. That's OK, you're giving me - I prefer conversations rather than interviews that go one, two, three, four, five. A conversation should flow, not be dictated by what's on a piece of paper.

JK. He asks the questions here!

POM. I wouldn't make a very good lawyer. You needn't answer this question, if in fact the law is passed that it's just going to be bar-coded IDs would members of the IEC consider resigning?

JK. No. No, we're not children with toys that we can throw out of the cot. We must do what we can. I don't owe an obligation to the ANC, I owe an obligation to the electorate. If it transpires six months down the line that we cannot have free and fair elections because of the regime it would be my duty to tell the country that. Yes. But one doesn't do that by walking away the moment the going gets tough. I don't think it's reached that stage, anywhere near it.

POM. These are quick questions I think. Has there been a nationwide campaign to inform the public of the type of ID they need?

JK. That has been waiting for parliament's decision on what kind of ID is needed. It's one of the points you read out there. Our voter education programme has been delayed because the decision is delayed. The answer is no, not yet.

POM. Two, are the public aware of the association even between having a bar-coded ID and being able to vote? The one is a pre-requisite for the other.

JK. No. The electorate is not yet sufficiently informed. In fact the electorate is not sufficiently informed of the reason, the necessity to register as a voter. It doesn't fill me with any kind of sense of impending doom. If we go to registration end October/early November it's more than enough time at that stage, or shortly before that, a fortnight, three weeks before that, to start saturation information techniques.

POM. You answered this, not answered it but touched upon it in one of your responses, you could end up on polling day if no remedial action is taken with voters turning up at election polls and being told they have the wrong ID or that they can't vote and they say, well I voted in 1994 why can't I vote now? And you say well you don't have the right ID. Is there a potential for trouble, for violence?

JK. Potential for trouble, certainly. One of the prophylactics is that we will have an extensive and lengthy registration process in the course of which that kind of person who has got the wrong ID will be told months before the election, "My brother, this is no good, go and get yourself a different one. Go to Home Affairs, go and get a certificate that looks like this and then we will register you." So there is a risk but we're diffusing it substantially with the registration process.

POM. So the problems you face, are they (i) finding where voters with non-bar-coded IDs are?

JK. No, that we know. We think, I've got the statistics from the HSRC that tell you, Home Affairs regional offices.

POM. Having identified, have there been problems in convincing them to apply for the new ID?

JK. I can't answer that question. By my lights the more serious problem is that it's one body that does the registration of voters and it's another body that does the registration of citizens. We and Home Affairs will have to work very closely together and the track record so far has not given me a great deal of optimism about how well that's going to work.

POM. The third question would be, or the third probable area of cause for concern is the capacity of Home Affairs to process the IDs and get them, as you say, not to the printer but to get them into the hands of -

JK. The public, and I don't mind saying so. I have heard from Home Affairs a daily output capacity estimate varying from 7500 to 25,000 production capacity. Now I don't think they've got any statistics. Over time they may have a - oh, Mr Mokoena, on Tuesday last week we produced 25,000 documents, but that's at the printing shop. I'm saying it's not a turnover figure. I don't think they've got any turnover figure and that worries me more than them having wrong figures. I think they're at sea and they don't know.

POM. Are there any other obstacles that you face?

JK. That we face or Home Affairs?

POM. That you face in planning the election?

JK. Oh certainly, certainly, lots of obstacles. We've got money problems. We're still fighting with, or debating, arguing, wrestling with the holders of the purse strings. We've got a very, very major effort at the moment. We've got our central organisation reasonably established but that's no damn good without local representatives. We are negotiating at the moment all over the country with some 500 local electoral agents, Town Clerks.

POM. These are the municipalities?

JK. Municipalities, to be our part-time 'men in Havana' as it were. We can't afford to have full time people. It doesn't make sense to have people full time in so many places. We need them for registration, we need them for voting and that's it. We're busy negotiating with hundreds of them at the moment. It's a very tall order. There's a very serious lack of capacity in large parts of rural SA.

POM. Of rural SA?

JK. Where your municipality exists on paper but not on the ground, where we will have to use regional or neighbouring local authorities to provide the capacity. It takes a lot of tying up.

POM. So in a nutshell that problem is that the government has not supplied you with sufficient resources to carry out your mandate in the fullest and most effective way?

JK. I wouldn't say they don't, they're very reluctant and every bit has got to be wrestled out of them. I was studying our current budget adjustment this morning when you arrived, when the radio interview started.

POM. Where you were called an ex-judge?

JK. Yes.

POM. Just to make your day!

JK. I wish I were.

POM. I've finished with the elections and I've got five minutes and I know you're up to your ears in about 100 different things. These are just again, and you may not be able to answer some of them in case they come before the court and if they are I will understand you saying that you can't talk about it. But does the decision of the ANC to appoint Premiers in the provinces it wins concern you? Does it go against the spirit of the constitution if not necessarily the letter in the sense that the people in a province should know who is going to lead them when they go into a ballot box to vote for a particular party?

JK. It's really not a black and white one. I don't think that the people vote for names of people, I think they vote for the party. And I don't think in the system of PR the identity of the Premier is all that important .

POM. Does it concern you that the ANC has made it a target to get more than two thirds of the vote in the next election?

JK. No, I think it's a legitimate political objective. Whether they get there or not will depend not only on their efforts but on the efforts of the opposition parties. Political hubris is not a good idea. Let me answer your question, I was pleased that they did not get a two thirds majority last time.

POM. So was Mandela.

JK. So was Mandela overtly. It would not have been a good idea if they could write the constitution on their own.

POM. But would they be able to amend it on their own?

JK. Yes.

POM. With 66%?

JK. Yes.

POM. Is that not an equal danger?

JK. I think the longer we live the wiser we get, the longer you live with a constitution the less likely you are to amend it fundamentally.

POM. What exactly are the requirements for amending the constitution and do the same requirements apply to all parts of the constitution? Because I've heard three versions, one is 66½% of the members of the National Assembly. Two, I've heard 75%. Three, I've heard that 66% plus the support of six provinces.

JK. It depends which kind of amendment it is. If you affect the powers of provinces you've got to get the support of six of the nine provincial delegations in the NCOP. That is so, but that's where you are dealing with a constitutional amendment that affects provincial powers. Section 74, the entrenching clause of the constitution itself, and Section 1 of the constitution, which is the basic values of the constitution, requires a 75%, three quarter majority of the National Assembly and supporting votes of at least six provinces in the NCOP. But other amendments to the normal other provisions of the constitution, more particularly those not affecting the Bill of Rights, two thirds of the National Assembly and two thirds of the NCOP.

POM. The Bill of Rights would fall either under Section 1 or Section 74?

JK. No it's not Section 1, it's Chapter 2.

POM. So on Bill of Rights it would require 75%?

JK. No, it's also two thirds.

POM. Oh, two thirds, OK.

JK. In the case of a power affecting a province the matter also has to go to provinces.

POM. So everything has to go ultimately to the provinces?

JK. To the National Council of Provinces, yes.

POM. OK. Last question. The proposed formula for funding of political parties. The constitution says, I think in it's opening, its preamble, that it wants to establish a viable and multiparty system. One, the decision not to fund new parties where a party like the UDM, for example, has a demonstrable support at least in polls, which is all one can go by at this point, really puts the formation of new parties when they contest elections at a serious disadvantage vis-à-vis established parties. Is this against the spirit of the constitution?

JK. I wouldn't say so, I wouldn't say so because we are dealing with two different concepts. It can't go against the constitution because the constitution itself says that you must fund, publicly fund, political parties participating in national and provincial legislatures. That's what the constitution says. So if you're not participating in a legislature you just don't fit within the four corners of the constitutional prescript. Whether that's the way the constitution should have been drawn that's a different problem.

POM. Sorry, it says participating in an election?

JK. No, not in an election. Participating in a legislature.


JK. So if you're not a player in the ring you don't qualify in terms of the constitution. The political philosophy. Is that correct? I don't know. It's arguable both ways. But there's no election funding any longer, none at all. This is purely admin funding. Switch off the machine.

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